Citation Nr: 21013634 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-24 230 DATE: March 10, 2021 ORDER Entitlement to service connection for chronic kidney disease is denied. Entitlement to service connection for a prostate disability is denied. FINDINGS OF FACT 1. The probative evidence of record demonstrates that the Veteran’s chronic kidney disease did not originate in service or for many years thereafter, is not related to any incident during active service, and is not related to in-service herbicide agent exposure and cannot be presumptively related to in-service herbicide agent exposure. 2. The probative evidence of record demonstrates that the Veteran’s prostate condition, diagnosed as benign prostatic hypertrophy (BPH), did not originate in service or for many years thereafter, is not related to any incident during active service, and is not related to in-service herbicide agent exposure and cannot be presumptively related to in-service herbicide agent exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic kidney disease are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a prostate disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to January 1969. The Board remanded the issues on appeal to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) in March 2020. As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The record shows that the Veteran served in the Republic of Vietnam. Therefore, he is presumed to have been exposed to an herbicide agent during service. 38 C.F.R. § 3.307 (a)(6)(iii). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, as in this case, certain diseases may be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service. 38 C.F.R. §§ 3.307 (d), 3.309(e). Certain listed medical conditions may be granted service connection on a presumptive basis due to such exposure. 38C.F.R. §3.309 (e). The availability of presumptive service connection does not, however, preclude a grant of service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); 38C.F.R. §3.303. The Veteran has a current diagnosis of end stage renal disease. End stage renal disease is not presumptively service-connected. Also, the Veteran claims entitlement to service connection for a prostate condition, diagnosed as BPH, which is not a disease listed in 38 C.F.R. § 3.309 (e). Therefore, service connection would not be warranted for these disorders on the presumptive basis of exposure to herbicides. 38 C.F.R. § 3.309 (e). However, his claims may be service connected on a direct basis due to in service exposure to a herbicide agent. 1. Service connection for chronic kidney disease The Veteran contends that his kidney condition is etiologically related to his service. Specifically, the Veteran contends it is related to exposure to herbicide and/or salt tablets he was required to take in service. The question for the Board is whether the Veteran has a disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of end stage kidney disease and polycystic kidney disease, the preponderance of the evidence weighs against finding that the Veteran’s disabilities began during service or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The Veteran’s service treatment records (STRs) do not contain any evidence of treatment, diagnosis or findings consistent with a kidney condition. The Veteran’s April 1969 separation examination is silent for a kidney condition. The Veteran’s private treatment records indicate that he was not diagnosed with congenital polycystic kidney disease until October 2012, decades after his separation from service. Thus, the Veteran’s kidney disease was not shown in service or within one year following discharge from service. Moreover, there is no competent evidence of record even suggesting that his current disability is directly related to service. Private treatment records show that the Veteran had been treated for kidney disease since May 2012. During his May 2012 private appointment, a kidney transplant was suggested. During a September 2015 VA appointment, the Veteran was diagnosed with chronic kidney disease, stage 5 secondary to polycystic kidney disease. He was treated with dialysis. In June 2020, the Veteran underwent a VA examination for kidney conditions. He was diagnosed with cystic kidney disease and end-stage kidney disease on dialysis. The Veteran noted that his kidney disease began around 2000. He had elevated kidney function and began dialysis in July 2014. The Veteran noted the course of the condition had worsened with less urine production. He was taking two medications to treat his kidney symptomatology. Also, he received dialysis treatment 3 days a week. Laboratory studies confirmed the Veteran’s kidney disease. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Veteran has diagnoses of end-stage kidney disease on dialysis and cystic kidney disease. Medical literature notes that polycystic kidney disease is an inherited disorder in which clusters of cysts develop primarily within kidneys, causing kidneys to enlarge and lose function over time. Cysts are noncancerous round sacs containing fluids. Further, based on the Veteran’s private medical records, his end-stage kidney disease is related to his cystic kidney disease or hypertension. Therefore, it is less likely than not due to herbicide exposure or due to the taking of salt tablets. Based on the foregoing, the Board finds that the preponderance of the probative and persuasive evidence is against a finding of service connection for a kidney condition on any basis. Thus, the claim for service connection for a kidney condition is denied. The Board acknowledges that the Veteran believes his kidney conditions are related to his active service. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue.  The issue is medically complex, as it requires knowledge of pathology.  Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011).  Consequently, the Board gives more probative weight to the June 2020 examiner. The examiner’s opinion is probative, because it is based on an accurate medical history, review of all relevant lay and medical evidence, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Service connection for a prostate disability The Veteran contends that he has a prostate condition that is related to his service. Specifically, the Veteran contends his condition is related to his tours in the Republic of Vietnam and salt tablets he was required to take in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of BPH and prostatitis, the preponderance of the evidence weighs against finding that the Veteran’s diagnoses of chronic prostatitis and BPH began during service or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The Veteran’s STRs do not contain any evidence of treatment, diagnosis or findings consistent with a prostate condition. The Veteran’s January 1969 separation examination is silent for a prostate condition. The Veteran’s private treatment records indicate that the Veteran had elevated PSA numbers since April 2006 and that he was not diagnosed with BPH until October 2012, decades after his separation from service. Thus, the Veteran’s BPH was not shown in-service or within one year following discharge from service. Moreover, there is no competent evidence of record even suggesting that his current disability is directly related to service. The Veteran’s private treatment records in July 2014 indicate that the Veteran had elevated PSA numbers and BPH. The Veteran’s treatment records also indicate that the Veteran was taking medication for his prostate. The Veteran underwent a VA examination in December 2015. The examiner found the Veteran did not have any diagnosis of prostate cancer. The examiner reasoned that the Veteran history and biopsy reports in October 2005 and April 2006 do not indicate any diagnosis of prostate cancer. A July 2019 private treatment record indicated that there were areas of mild arterial hyper-enhancement throughout the peripheral zone, including a left prostatic apex. The note stated that this could be related to changes of chronic prostatitis or low-grade prostate cancer. In June 2020, the Veteran underwent a VA examination. The examiner found that the Veteran did not have a current diagnosis of, or had ever been diagnosed with, prostate cancer. There was no objective evidence to provide a diagnosis of prostate cancer. The Veteran was diagnosed with prostatitis. The Veteran noted that his prostate disability began in 2000. He had elevations in prostate specific antigen and was monitored by a urologist. A July 2019 image study showed prostate legions that were suggestive of prostatitis, low-grade prostate cancer, and iliac lymph nodes. The Veteran noted the course of the condition had worsened with increased urinary frequency, urinary incontinence, and increased prostate specific antigen. He was taking two medications to treat his prostate symptomatology. He was not undergoing any treatment for prostate cancer. He had an enlarged prostate that caused a voiding dysfunction. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Veteran has diagnoses of BPH, prostatitis, and rule-out prostate cancer. Medical literature notes that “BPH is considered a normal condition of male aging, and many men older than 80 years have BPH symptoms. Although the exact cause is unknown, changes in male sex hormones that come with aging may be a factor. Any family history of prostate problems or any abnormalities with testicles may raise one’s risk of BPH.” Prostatitis is caused by infection, injury, or an immune system disorder. Also, the side effects of salt tablets did not include any condition of the prostate. At this time, there is no confirmed diagnosis of prostate cancer, nor is there objective evidence to provide a diagnosis of cancer. Based on medical literature, prostatitis and BPH are not caused by herbicide exposure or by taking salt tablets during active service. Therefore, it is less likely than not that the Veteran’s prostate conditions were caused by herbicide exposure or the taking of salt tablets during active service. Based on the foregoing, the Board finds that the preponderance of the probative and persuasive evidence is against a finding of service connection for a prostate condition on any basis. Thus, the claim for service connection for a prostate condition is denied. The Board acknowledges that the Veteran believes his prostate conditions are related to his active service. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue.  The issue is medically complex, as it requires knowledge of pathology.  Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011).  Consequently, the Board gives more probative weight to the June 2020 examiner. The examiner’s opinion is probative, because it is based on an accurate medical history, review of all relevant lay and medical evidence, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.